P L D 1972 Lahore 349 (PLP)

4. The post‑mortem examination was conducted by Dr. Muhammad Asghar. at 9 a.m., on the next day, Le. 15‑6‑1967, who vide his report (Exh. P. N.) opined that it was unidentifiable dead body of a female which was completely burnt. The skull was separated from the trunk. The skin was charred and ribs of the right side were burnt. The right lung was exposed and burnt. The left leg was separated above the knee‑joint. In cross‑examination the doctor admitted that at the time of the post‑mortem examination two persons, Bashir Ahmad P. W. and Mst. Saidan identified the dead body and that he mentioned the age of the basis of the inquest report (Exh. P. Q.), which was received by him along with the dead body. He further stated that the skull was separated front cervical vertebra and upper end of larynx was burnt and it appeared as if it was cut from the skull by a sharp‑edged weapon. The stomach was congested and contained six ounces of fluid with semi‑digested food. Vaginal awabs were takers which were found to be stained with semen vide Chemical Examiner's report Exh. P. U. Death in the opinion of the doctor was caused by strangulation and then the throat was cut and body was burnt.

5. We have already referred at the outset to the presence of Tassadduq Hussain, complainant., Ehsan Ali and Fateh Muhammad, the two eye‑witnesses mentioned in the F I. R. having been attracted to the spot. In addition to this the police was able to collect some incriminating evidence. Kale Khan (P. W. 10), who ran a fuel wood depot at some distance from the spot stated that on the day of occurrence at about 8 a.m. Lai Masih (P. W. 9) came to his depot accompanied by a young man. They purchased three maunds of fuel wood which Lai Masih loaded on his rehri. Although in his statement before the C. M. this witness had specifically named Izharul Haq who had purchased the fuel wood yet he resiled from that statement which was transferred to the Sessions File under section 288, Cr. P. C. after proper confrontation. Lai Masih (P, W. 9) claimed to have transported the fuel wood on a rehri drawn by a donkey. Although in his statement before the C. M. he claimed to have entered the house and saw a woman sitting inside the courtyard yet he also went back on that statement which likewise was transferred to the Sessions File under section 288, Cr. P. C. after proper confrontation. Another piece of evidence present together was one available in the testimony of Barkat (P. W. 11), a Water‑Carrier, who claimed to have visited the house of Muhammad Ali, the scene of occurrence, at about 7 a.m. the same morning, and took a goat's skin full of water at the instance of a young man and a middle‑aged woman sitting in a chair. Having been shown the photograph (P. 11), he stated that it was that of the same woman seen by him. This witness pointed out towards the appellant as the person at whose instance he had carried the water. Although he claimed to have identified the appellant during the identifica tion test, yet this was factually incorrect and was falsified by the proceedings of identification parade placed on the record in defence.

6. Muhammad Afzal son of Muhammad Ali, the owner of the house in question, appeared as P. W. 12 only the trial, after an indication was given by the P. P. during the inquiry to produce him. He claimed to be a college fellow of the appellant in the Municipal Degree College, Okara in 1955‑66 and stated that the appellant frequently visited him at his house. He, however, added that on the day of occurrence he had gone to Kasur and that he had locked the house with Lock (P. 9) and Key (P. 10) and that the key in question was with him. On 16‑6‑1967, on his return from Kasur to Depalpur he learnt about the occurrence and came to Okara on 17‑6‑1967. Surprisingly enough although the relevant recovery memo. (Exh. PK), refers to the production of broken lock (P. 9) and key (P. 10) at the hand of this witness and this witness signed the recovery memo., yet he denied having produced the lock and key which otherwise was found to be in perfect order by the Court. At the time of his cross-examination during the trial he claimed to have already taken his L.L.B. examination. He denied the suggestion that he along with Riaz Ahmad (P. W. 5), who though not mentioned as an eye‑witness yet was examined as such, having murdered the deceased and burnt her, falsely implicated the appellant in order to save their skin. He also denied the suggestion that the story of his visit to Kasur was a mere fabrication so that in his absence his father may be able to help him, in which he allegedly, succeeded in collusion with the local police. Thus in the ultimate analysis, in the absence of any ocular, evidence of murder, the prosecution could fall back upon its. evidence. The prosecution produced three sets of witnesses. The first consisted of the testimony of Tasadduq Hussain, Ahsan Ali, Fateh Muhammad and Riaz Ahmad, who claimed to have been attracted to the spot on seeing the flames rising high from the house of Muhammad Ali and having met the appellant, who allegedly unchained the door of the house on, receiving knocking and later on slipped away. The second set consisted of real relations of the deceased, namely, Bashir Muhammad, nephew and son‑in‑law, her two daughters. Mst. Rani and Mst. Mansab who all are painted in darkish colour as a woman of immoral character living more or less on, prostitution in whom Izharul Haq appellant was interested. The third set of witnesses, namely, Lal Masih, who carried the fuel wood at the instance of the appellant to the house of Muhammad Ali and Kale Khan, who sold the fuel wood, and Barkat, Water‑carrier, who took water at his instance early same morning. According to their statements before the C. M. they saw a middle‑aged woman present inside the house.

7. We have already referred to the position taken up by the appellant at the trial. Despite the fact that none of the witnesses was able to identify the appellant during the two identification tests and almost all except Muhammad Afzal and. Barkat resiled from the statements made before the C.M., wherein they had otherwise tried to support the prosecution case, the learned trial Judge recorded a verdict of guilty against the appellant giving rise to the present appeal. It may be mentioned in this context that the learned trial Judge came to the conclusion that all the witnesses have been successfully tackled by the father of the appellant who was a doctor and an influential person in Okara so much so that even the near relations of the deceased had deliberately tried to create confusion. as to the identification of the dead body by producing yet another photograph (Exh. D. 1), different from P. 11, produced by Mst. Rani in the course of investigation.

8. In his elaborate argument addressed before us by Mr. Saleem, learned counsel contended‑ Firstly, that in the absence of direct ocular evidence the time: and circumstances of the murder remained undetermined, Secondly, that the identity of the appellant as the person having unchained the door and then slipped away equally remained doubtful, Thirdly, that even if it may be deemed to have been established, the absence of any blood‑stains on his clothes or the recovery of sharp‑edged weapon, exculpate the appellant and Lastly, that even the evidence of having attempted disappearance of the dead body in terms of section 201, P. P. C. did not stand established against him (the appellant) for which, in any case, he could not be convicted because of the failure to frame any such charge against him, besides the illegality of such course, to view of the provisions contained in sections 236 to 238, Cr. P. C., which did not justify the recording of conviction of an offence under section 201/511, P. P. C., the trial having been originally held on a charge of murder.

9. Before dealing with the contentions raised by the learned counsel for the appellant, we would like to observe at the outset that having gone through the record we cannot avoid the Impression that the P. Ws. were successfully tackled by the relations of the appellant. Although on the face of it the contention raised on behalf of the defence that if actually seen at the relevant time the appellant should have been clearly identified by at least some of the P. Ws. during the two identification tests appears to be forceful yet it appears to have been rightly repelled by the learned trial Judge in the background and circumstances of the case. The explanation offered by him in this regard as also adopted by the learned counsel for the State before us was that in case the complainant or the other P. Ws. were in some manner doubtful regarding the correct identity of the appellant, his name should not have been specifically mentioned in the initial report promptly lodged in the police post. It was further contended that the initial report does not confine itself to a mere reference to the presence of the appellant but it also speaks of having actually unchained tie door on receipt of a knocking, having offered a false pretext in explanation of the rising of the flames and then having quietly slipped away. We are inclined to think that these details have a ring of truth and have been correctly incorporated in the initial report and the police statement before any extraneous influence could be brought to bear upon it. The view taken by the learned trial Judge was that the failure of the P. Ws. to identify the appellant during the two identification tests was deliberate followed by an equal calculated move to identify him before the C. M. in order to avoid the possibility of a reference of the case to trial by a Jirga, which could be done at any stage before the charge was framed. Having once safeguarded against such an eventuality the witnesses could resile from their previous statements with impunity as they actually did. In fact, a perusal of their statements and the manner in which they have deposed to, except the smallest suggestions made to them by the defence, shows that they were entirely in their hands and readily prepared to play to their tune. In the circumstances, we have every reas9n to believe that the original version of Tasadduq Hussain (P. W. 2) supported by Ehsan All (P. W. 3) and Fateh Muhammad (P. W. 4), in their statements before the C. M., gave the correct position and it was none also than the appellant who unchained the door as the solitary person Inside the house when the dead body was burning and the flames were rising high. Having found the people engaged in extinguishing the fire he quietly succeeded in slipping away un noticed.

10. At the same time we would also like to observe that the testimony of the other witnesses, namely, Barkat and Lal Masih, who claimed to have visited the house early the same morning on one pretext or the other, such as for bringing water and carrying fuel wood etc. despite their being self‑condemned as having gone back on their statements, does not inspire confidence, firstly, for the reason that they were not examined by the police on the same day, secondly, there is nothing to indicate as to how was it possible for the police to trace them out, and thirdly, they stated purely on the basis of memory, which could not be relied upon. In fact the Courts are not unfamiliar with such type of patch‑work through co‑operation of witnesses of this kind which it is always easy to procure. Accordingly we rule out this part of the prosecution version. Another factor which lends further support to this failure is the alleged time of their visit when they claim to have last seen the deceased between 7/8 a.m. The contents of the stomach clearly indicated that she had taken her meal before a couple of hours before she met with her death. Thus she could have either taken her last meals between 8/9 a.m., or had been done to death sometimes at 11 p.m. after she had taken her evening meal. In the absence of any positive evidence that the appellant or somebody else should have been keen to kill this woman, we are inclined to think that she was brought to this house for immoral purposes. As such the person interested would not have chosen the day time and would rather have preferred to bring her unobserved under the cover of darkness. Notwithstanding, therefore, that the stomach contents would fit in both with the breakfast as also the evening meal, we are inclined to think that she was brought to the house in the previous evening and met her death some time during the night. Further support is lent to this view by the inquest report (Exh. P. Q.) as also supported by Mst. Rani P. W. accord ing to which the appellant came to their well Maleywala and took her mother on the pretext that her younger sister Mansab had met with an accident. According to the inquest report the appellant had left with the deceased at about 7/8 p.m. in the previous evening. The third relevant point to be mentioned in this regard is that we are not convinced with the evidence given by the doctor on the basis of burnt and dismembered parts of an unidentified dead body of which the head was separated from the trunk that death bad occurred as a result of strangulation. On the other band we would rightly agree that a sharp‑edged weapon had been used whereby the throat had been cut as clearly indicated by the recovery of blood‑stained cot, blood‑stained earth and other blood‑stained articles. We are thus clearly of the view that the deceased had been done to death at about midnight or slightly earlier when her 1972 throat was slaughtered and not by strangulation. The positive report (Exh. P. U.) of the Chemical Examiner in respect of e vaginal swabs taken would also lend support to the view that she had been subjected to sexual intercourse and may be by use of force. We have already observed that we are not at all impressed by the motive alleged by the prosecution that the appellant having developed illicit intimacy was keen to marry her and that her refusal to accede to his request might have insisted him to kill her. In fact there is ample evidence to show that nobody would have taken keen interest to marry a woman of middle age having five six children and the interest of the appellant, if at all, should have been confined to carrying on promiscuous relations with her.

11. Although there are some indications, despite inconsistent evidence on the record, that it was the appellant who had brought the deceased on the previous evening from Maleywala well, yet this could not incriminate him to the extent of the actual commission of the murder. If, for instances, he was the person who had killed the deceased inside the room, as indicated by the recovery of the cot, the slaughtering of the neck and in fact complete severance would have resulted in spurting out blood leaving at least some stains of which no reference was made by any of the P. Ws. Again if he was the only person present, he could either have lifted the dead body to the place where it was found burnt at point No. 2, shown in Exh. P. L., it was but natural that his clothes might have been stained with blood. If in the alternative the dead body was dragged, there should have been trail of blood. No such evidence is available on the record in this regard. Yet another significant fact is the venue of the occurrence which does not belong to the appellant or his father, but was the house of the father of his friend Afzal, if the testimony of the latter is to be believed. There could thus be two alternatives, firstly, either the appellant and Afzal had together managed to procure the woman for the night and something transpired leading to her death when Afzal slipped away, informing his father, Rana Muhammad Ali who according to the P. Ws. reached the spot soon after the occurrence and brought Bashir, Mst. Rani and Mst. Mansab to the spat to identify the dead body, or, alternatively, he had having himself gone to Kasur, as he would have us believe, handed over the key of the house to the appellant to enable him to enjoy for the night. However, the production of the broken lock and key by him before the police, which were taken into possession vide memo. Exh. P. K., it does not stand to reason as to why the same were produced on the 17th of June 1967. The Impression sought to be created by the prosecution on the basis of memo. Exh. P. K. was that having learnt about the absence of Afzal from the house, the appellant broke open lock which on the contrary was found to be in perfect order by the trial Court giving a complete lie to this part of the prosecution version. From this we cannot avoid the impression that the appellant could not be directly held responsible for the murder of the deceased who in all probability was killed by more than one persons. For reasons recorded earlier, we are convinced that she was the solitary person who was found inside the room, unchained the door on receipt of the knock and slipped away. His abscondence is not satisfactorily explained by him despite a crude attempt to do so. Thus having regard to the circumstances of the case and the evidence placed on the record, v e are of the view that it was he and none else who was responsible for having tried to burn the dead body after the deceased had already been killed and as such was guilty of an attempt to cause disappearance of an offence punishable under section 201/511, P. P. C. It was argued before us by Mr. Saleem that in the absence of direct evidence of anybody having actually seen the appellant applying match box to the fuel wood, the possibility of the real accused having slipped away leaving him there to manage the rest of it, could not be excluded. Having regard to the relevant facts and the evidence, we consider it rather far‑fetched and are clearly of the view that despite the absence of ocular evidence, the probability of the appellant having actually put the dead body to fire 1s so great that we can reasonably act, on existence as envisaged, on the interpretation of expression "proved" contained in section 3 of the Evidence Act.

12. Apart from the prejudice caused to the appellant who in the absence of a formal charge, had no opportunity to meet the precise allegations of an offence under section 201/511, P. P. C. Mr. Saleem raised an important legal contention to challenge the conviction of the appellant under this section when he was originally tried on a charge of murder. Learned counsel tries to criticise the authority Begun etc. v. The King‑Emperor (I L R 4 Lah. 226), which changed the course of judicial pronouncements and in this regard forming the basis of subsequent authorities, according to which, in view of the provisions contained in section 237, Cr. P. C., no exception could be taken to the conviction of a person originally tried for murder for an offence under section 201/511 P. P. C. despite the absence of formal charge in this regard. Reliance was placed in this regard on the statutory Provisions contained in sections 236 to 238, 72. 376(3) and 403, Cr. P. C. Although apparently we see considerable force in the contention raised by the learned counsel for the appellant yet having regard to the illustration contained in section 237, Cr. P. C., which appears to have formed the basis of the Privy Council authority, referred to above, with the utmost respect, we would not like to make bold to break new ground so as to make a departure from the settled position. It would, however, be appropriate for their Lordships of the Supreme Court to examine this matter in an appropriate case. Accordingly, while setting aside the conviction and sentence of the appellant on charge of murder, we record his conviction under section 201/511, P. P. C. for which the maximum sentence would be one‑half of that of seven years prescribed for an offence under section 201/511, P. P. C. which comes to three and a half years. The appeal partly succeeds to this extent. Order accordingly.